TREATIES AND OTHER INTERNATIONAL ACTS SERIES 09-316.2 ________________________________________________________________________

SCIENTIFIC COOPERATION Agreement Between the

UNITED STATES OF AMERICA

and GERMANY

Signed at Berlin March 16, 2009 with Annex

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966 (80 Stat. 271; 1 U.S.C. 113)— “. . .the Treaties and Other International Acts Series issued under the authority of the Secretary of State shall be competent evidence . . . of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and international agreements other than treaties, as the case may be, therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof.”

GERMANY

Scientific Cooperation Agreement signed at Berlin March 16, 2009;

Entered into force March 16, 2009. With annex.

AGREEMENT

BETWEEN

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

AND

THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY

ON

COOPERATION IN SCIENCE AND TECHNOLOGY

CONCERNING

HOMELAND/CIVIL SECURITY

MATTERS

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

AND

THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY

(hereinafter referred to as "the Parties"),

HAVING a mutual interest in research and development relating to homeland/civil

security matters, in particular giving attention to the development of innovative

solutions to increase people's security without limiting their freedom;

DESIRING to increase the exchanges of information and personnel in areas pertinent

to the identification of homeland/civil security threats and countermeasures and the

development of technical standards, operational procedures, and supporting

methodologies that govern the use of relevant innovative solutions;

STRESSING that physical and cyber-based critical infrastructure/key resources and

other homeland/civil security capabilities, both governmental and private, are essential

to the operation and security of the Parties' respective economies, societies, and

governments;

NOTING that the Parties' economies are increasingly interdependent, and that

infrastructure protection and homeland/civil security are of paramount concern to the

Parties' respective governments;

BElNG AWARE of research, development, testing, evaluation, development of

technical standards and operations in both countries in chemical, biological.

radiological, nuclear and explosive countermeasures, and in other areas that could

enhance homeland/civil security;

RECOGNIZING a common desire to

-improve the understanding of threats;

- expand the homeland/civil security technology capabilities of each Party;

-minimize unnecessary duplication of work;

- obtain more efficient and cost-effective results; and

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- adapt more flexibly to the dynamic threat environment

through cooperative activity that is mutually beneficial and that relates to the

application of state-of-the-art and emerging security technologies and science-based

knowledge, making best use of the Parties' respective science, research, development,

and testing and evaluation capacities;

AFFIRMING a common interest in enhancing the longstanding collaborative efforts of

the Parties' respective agencies, private sector and governmental organizations, and

academic institutions in generating scientific and technological solutions to counter

threats, reduce vulnerabilities, and respond to and recover from incidents and

emergencies in those areas having the potential for causing significant security,

economic, and/or social impacts;

DESIRING to set forth a vehicle for the conduct of cooperative scientific and

technological research including social and behavioral sciences and humanities,

development, testing and evaluation in the field of homeland/civil security,

HAVE AGREED as follows:

Article 1

Definitions

For purposes of this Agreement between the Government of the United States of

America and the Government of the Federal Republic of Germany on Cooperation in

Science and Technology for Homeland/Civil Security Matters (hereinafter referred to

as "the Agreement"), the Parties have adopted the following definitions:

1. Business Confidential

Information

2. Classified Information

Has the meaning given to it in Section JV of the Annex to

this Agreement

Official information or preliminary or predecisional data.

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3. Contract

4. Controlled Unclassified

lnfonnation

5. Cooperative Activity

as applicable, that requires protection for national

security, law enforcement; domestic security, or other

reasons and is so designated by the application of the

appropriate security classification markings m

accordance with the applicable laws, regulations,

policies, or directives of either Party. It may be in oral,

visual, magnetic, electronic, or documentary fonn, or in

the form of Equipment and Material or technology.

A legally enforceable agreement creating or transferring

rights and obligations for the provision of technology,

goods or services.

Information or preliminary or predecisional data, as

applicable, that is not deemed to be Classified

Information, but to which access or distribution

limitations have been applied in accordance with

applicable laws, regulations, policies, or directives of

either Party. Whether the information is provided or

generated under this Agreement, it wil1 be marked to

identify its sensitive character. This definition includes,

but is not limited to, infonnation marked "Sensitive

Homeland Security Information," "Sensitive Security

Information," "For Official Use Only," "Law

Enforcement Sensitive Information," "Protected Critical

Infrastructure Information," "Restricted," "Sensitive But

Unclassified (SBU)", and may include Business

Confidential Information.

Any activity described in Article 7 of this Agreement on

which the Parties agree to cooperate with or without the

involvement of Participants to achieve the objectives of

this Agreement.

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6. Critical Governmental and/or private activities or sectors that are

Infrastructure/Key Resources identified by each Party in its laws, executive orders,

directives or policies as "Critical Infrastructure" or "Key

Resources".

7. Equipment and Material Any document, product or substance on or in which

information may be recorded or embodied. Material shall

encompass everything regardless of its physical character

or makeup including documents, writing, hardware,

equipment, machinery, apparatus, devices, models,

photographs, recordings, reproductions, notes, sketches,

plans, prototypes, designs, configurations, maps and

letters, as well as all other products, substances or

material from which information can be derived.

8. Intellectual Property

9. Non-Disclosure

Agreement

10. Participant

Has the meaning given in Article 2 of the Convention

Establishing the World Intellectual Property

Organization, done at Stockholm July 14, 1967, as

amended on September 28, 1979, and may include other

subject matter as agreed upon by the Parties.

A legal agreement between a Party and one or more

Participants that creates an obligation of the Participant

not to disclose certain information and to restrict use of

such information.

Any person or entity, including hut not limited to a

private sector organization, academic institution, or

laboratory (or subsidiary thereof) engaged in a

Cooperative Activity, including those under Contract to a

Party.

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ll. Project

12. Project Arrangement

13. J>roject

Background

Information

14. Project Foreground

Information

15. Technology

Management Plan

A specific form of Cooperative Activity described in

Article 7.

A Contract between the persons or entities engaged in the

implementation of a Project, setting out the terms and

conditions of the Project to be carried out.

Any information furnished to a Project regardless of form

or type, including that of a scientific, technica~ business,

or financial nature, and including photographs, reports,

manuals, threat data, experimental data, test data,

designs, specifications, processes, techniques, inventions,

software, source code, drawings, technical writings,

sound recordings, pictorial representations, and other

graphical presentations; whether in magnetic or

electronic media, computer memory, or any other form

and whether or not subject to intellectual property

protections.

Any information created in a Project, regardless of form

or type, including that of a scientific, technicaL business,

or financial nature, and including photographs, reports,

manuals, threat data, experimental data, test data,

designs, specifications, processes, techniques, inventions,

software. source code, drawings, technical writings,

sound recordings, pictorial representations, and other

graphical presentations; whether in magnetic or

electronic media, computer memory, or any other form

and whether or not subject to intellectual property

protections.

A specific component of the Project Arrangement

specifying how Project Background and Foreground

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16. Third Party

Information will be handled. It will describe among other

things, the rights of the Parties and their Contractors and

Participants concerning Intellectual Property created

under this Agreement, including how any royalties shall

be shared, where such Intellectual Property shall be

protected, and who shall be responsible for obtaining that

protection and granting licenses.

Any entity or person who is neither a Party to this

Agreement nor a Participant in the specific Cooperative

Activity in question.

Article 2

Objective

The objective of this Agreement is to establish a framework to encourage, develop and

facilitate bilateral Cooperative Activity in homeland/civil security-related science and

technology that contributes to innovation and to the homeland/civil security capabilities of

both Parties in:

a) the understanding, prevention and detection of homeland/civil security threats,

and the response to those threats;

b) the forensics and classification applied to security threats;

c) the protection of Critical Infrastructure/Key Resources; and

d) crisis response and consequence management and mitigation for high­

consequence events.

Particular attention is given to the development of solutions to increase people's security

without limiting their freedom.

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Article 3

Means of Achieving Objectives

The Parties shaH seek to achieve the objectives set out in Article 2 by means which may

include, but are not limited to:

a) facilitating a systematic exchange of technologies, personne~ and information,

both public and controlled;

b) promoting coordinated and joint research and development Projects;

c) collaborating to develop technologies and prototype systems that assist in

countering present and anticipated terrorist actions in their respective

territories, and other homeland/civil threats such as natural disasters and major

accidents;

d) integrating or adapting the homeland/civil security technologies of each Party

to save development costs;

e) conducting evaluation and testing of prototype homeland/civil security

techno logics;

f) developing an approach to identifY common priorities, including areas of

research for Cooperative Activity;

g) ensuring consistent measures of effectiveness by development and

implementation of appropriate standards and test protocols and methodologies;

h) involving a wide range of public and private sector research and development

organizations including industry in Cooperative Activity pursuant to this

Agreement;

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i) providing reciprocal opportunities to engage in Cooperative Activity, with

shared responsibilities and contributions, which are commensurate With the

Parties' or the Participants' respective resources;

j) providing comparable access to government-sponsored or government-funded

programs and facilities for visiting researchers and expert<;, and comparable

access to and exchange of information and Equipment and Material;

k) facilitating prompt exchange of information and Equipment and Material,

which may affect Cooperative Activity, and facilitating the dissemination of

both public and controlled information and Equipment and Material, consistent

with applicable laws, regulations, policies and directives; and

1) utilizing and applying Project Foreground Information derived from

Cooperative Activity to benefit both Parties and the Participants. The right to

ownership and exploitation of Project Foreground Information are to be

governed by the Articles of this Agreement and established in the Technology

Management Plan of the applicable Project Arrangement, taking into account,

among other things, the Parties' or Participants' respective contributions to the

Project.

Article 4

Executive Agents

Each of the Parties shall designate an official with the responsibility for the political

and administrative oversight of the implementation of this Agreement. They shall act

as the "U.S. Executive Agent" and the "German Executive Agent", re!>-pcctivcly.

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Article 5

Management

1. The Executive Agents shall appoint one or more Agreement Directors who shall be

responsible for the day-to-day management of this Agreement and its Cooperative

Activity in all or in specific areas of cooperation. ln addition, the Agreement

Directors shall be responsible for:

a) promoting Cooperative Activity under this Agreement;

b) exercising oversight for activities carried out under this Agreement;

c) serving as a repository for any and aU documentation which is generated

pursuant to this Agreement including Project Arrangements and any annexes

thereto;

d) monitoring the overall use and effectiveness of this Agreement;

e) recommending amendments to this Agreement to the Parties;

f) resolving issues arising under this Agreement;

g) authorizing involvement by Participants in Cooperative Activity pursuant to

this Agreement;

h) establishing and maintaining security guidelines, including but not limited to

procedures related to exchange, storage, and transmission of information, both

public and controlled. and equivalent security markings to be applied to

exchanged information in accordance with Article 12;

i) ensuring that any requirements to exchange Classified Information and

Controlled Unclassified Information in connection with any Project are fully

identified in advance and specifically agreed to prior to the conclusion of any

Project Arrangement; and

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j) developing and maintaining an outline of Cooperative Activity. This outline

will be known as the work plan and will regularly document the Cooperative

Activity to be carried out under this Agreement.

2. The Agreement Directors shall review the implementation of the Agreement at

such time as they consider appropriate. The Agreement Directors shall be

responsible for coordinating with any other coordination bodies that may be

established by the Parties.

Article 6

Areas of Cooperative Activity

The Parties shall facilitate Cooperative Activity in broad areas of science and technology

related to homeland/civil security. Areas of Cooperative Activity include, but are not

limited to:

a) research and development of innovative technologies, solutions, and systems to

meet user requirements or capability gaps of the Parties and the Participants;

b) development and implementation of threat and vulnerability asses~ments,

interdependency analyses, and methodologies related to potential threats to

homeland/civil security scenarios;

c) assessment of prior operational experiences and evaluation for the purposes of

articulating operational deficiencies into definable technical requirement<> and

appropriate standards and supporting methodologies;

d) use and optimization of existing technologies for defense against terrorism and

other homeland/civil security threats;

e) testing and evaluation of specific prototype systems for homeland/civil security

applications in both laboratory environments and real or simulated operational

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settings. This includes technologies associated with enhanced detection and

monitoring ofpotential terrorist activities and those associated with recovery and

reconstitution of damaged or compromised systems;

f) preparation of detailed final test reports to allow either Party or their Participants

to evaluate follow-on efforts individually or to allow the transition of successful

prototypes into operational deployments;

g) system protection (including protection of automated infrastructure control

systems) and information assurance (including protecting the integrity of data

and information in control systems);

h) access to the education and training programs of the Parties;

i) the exchange of scientific and technical personnel and of Equipment and

Material in science and technology areas;

j) development and exchange of information, best practices, standards, and

guidelines; and

k) commercialization and other exploitation of Project Foreground Information and

any resulting Equipment and Material developed through Cooperative Activity to

achieve the effective transition of technology from the research and development

environment to the operational environment.

Article 7

Cooperative Activity

l. Prior to undertaking a Project or another Cooperative Activity of comparable

importance under this Agreement, the Parties shall agree in writing upon the

nature, scope, and duration of the Cooperative Activity,

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2. Cooperative Activity under this Agreement may include, but is not limited to the

following:

a) coordinated and/or joint research and development Projects;

b) task forces to examine emergent homeland/civil security challenges;

c) studies and scientific or technical demonstrations;

d) organization of field exercises, scientific seminars, conferences, symposia. and

workshops;

e) training of scientists and technical experts;

f) visits and exchanges of scientists, engineers, or other appropriate personnel;

g) exchanges or sharing of Equipment and Material;

h) exchange of information on practices, laws, regulations, standards, methods,

and programs relevant to cooperation under this Agreement;

i) joint use of laboratory facilities and Equipment and Material, for conducting

scientific and technological activities including research, development, testing

and evaluation; and

j) joint support of the commercialization and exploitation of Equipment and

Material and Project Foreground Information developed through Cooperative

Activity.

3. The Parties may select or facilitate whatever available mechanisms appropriate to

accomplish such Cooperative Activity. Such mechanisms include but are not

limited to grants, Project Arrangements, or other Contracts (with or without

teaming agreements) with public or private entities, governmental organizations of

the federaL state or local level, businesses (including small businesses and socially

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and economically disadvantaged small businesses), government-funded research

and development centers and organizations, and universities.

4. Nothing in paragraph 1 or 2 shall preclude the Parties from facilitating other forms

of Cooperative Activity that they may agree upon. Nor shall Cooperative Activity

pursuant to this Agreement be interpreted in such a manner as to interfere with any

other arrangements between agencies, institutions, and private companies of the

Parties.

5. Subject to applicable laws the Parties shall ensure that the terms of this Agreement

be incorporated into the contractual instruments of all Cooperative Activity and

supporting Contracts, regardless of form. The Contracts shall foresee, that in the

case of any inconsistency between the terms of the Contract and the terms of this

Agreement, the terms of this Agreement shall prevail. The Parties recognize that

their respective applicable laws and regulations apply to activities undertaken in

respect of Project Arrangements and their supporting Contracts made under this

Agreement.

6. This Agreement including the Annex does not constitute a derogation from the

Parties' applicable law. In the case of any contradiction between this Agreement

and the nationally applicable law of either Party, the applicable law shall prevail.

That Party's Executive Agent shalJ provide timely notice to the other Party's

Executive Agent in such case.

7. The Parties shall ensure that Projects and other Cooperative Activity of

comparable importance are supported by Contracts wherever possible. Project

Arrangements and associated Technology Management Plans will normally be

concluded by the Participants at the commencement of each Project.

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Article 8

Participants

1. Subject to the provisions of this ,Article, a Party normally involves Participants to

carry out Cooperative Activity. The involvement of any Participant in the

implementation of any Project or other Cooperative Activity of comparable

importance shall require the other Party's prior review and written approval.

2. Before involving a Participant in a Project, a Party must enter into a Contract,

which includes a Non-Disclosure Agreement, with that Participant unless an

equivalent legal obligation already exists.

3. The Party involving a Participant shall ensure that the Participant agrees to report

to that Party's Agreement Director.

4. The Parties' Agreement Directors shall jointly determine the frequency and scope

of the reporting requirement referred to in paragraph 3 of this Article.

5. In the event that a question arises with respect to a Participant and/or its activities

under this Agreement, the Agreement Directors shall consult to consider the

Participant's role in Cooperative Activity. If either Party objects to a Participant's

continued participation and requests its termination, the Party that involved that

Participant shall give the request due consideration. including as to the

consequences ofterminating the Participant's participation.

6. Nothing in this Agreement or any Project Arrangement precludes a Party who has

involved a Participant from suspending that Participant's activities or replacing the

Participant in one or more Projects.

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Article 9

Finance

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1. Subject to the availability of funds and to the provisions of this Article, each Party

shall bear as a rule its own costs of discharging its responsibilities under this

Agreement and for associated Projects.

2. Except as provided in paragraph 1 of this Article, this Agreement creates no

standing fmancial commitments.

3. The Parties or, where appropriate, the Participants may agree to share costs for

Cooperative Activity. Detailed descriptions of the fmancial provisions for

Cooperative Activity, including the total cost of the activity and each Party's or

Participant's cost share, shall be agreed in accordance with paragraph 4 of this

Article.

4. The Project Arrangement shall specifY in advance the equitable share of the total

costs, including, where appropriate, overhead costs and administrative costs, a cost

ceiling, and the apportionment of potential liability to be borne by each Party or

Participant in the Project. In determining the equitable share of total costs, the

Parties or Participants may take into account:

a) funds provided for work under this Agreement ("financial contributions");

b) material, personnel, use of Equipment and Material and facilities provided for

the performance of work under this Agreement ("non-financial contributions")

to directly support Project efforts. Prior work can constitute a non-financial

contribution; and

c) the ownership of Project Baciq,Yfound Infonnation utilized in the Project.

5. The following costs shall be borne entirely by the Party or Participant incurring the

costs and are not included in the cost target. cost ceiling, or overall costs:

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a) costs associated with any unique national requirements and/or

b) any costs not expressly stated as shared costs or any costs that are outside the

scope of this Agreement.

6. A Party or Participant shall promptly notify the other Party or Participant if

available funds are not adequate to undertake activities arising as a result of this

Agreement. If a Party or Participant notifies the other that it is terminating or

reducing its funding for a Project, both Parties or the Participants shall

immediately consult with a view toward continuation on a changed or reduced

basis. If this is not acceptable to both Parties or the Participants, the respective

rights and responsibilities of the Parties and Participants under Articles 12, 13, and

14 shall continue notwithstanding the termination or expiration of the Project.

7. Each Party shall be responsible for any audit of its activities in support of

Cooperative Activity, including the activities of any of its Participants. Each

Party's audits shall be in accordance with its own national practices. Where funds

are transferred from one Party to the other Party, the receiving Party shall be

responsible for the internal audit regarding administration of the sending Party's

fund..;; in accordance with national practices. Audit reports of such funds shall be

promptly made available by the receiving Party to the other.

Article 10

Export Control

1. The transfer of technical data for the purpose of discharging the Parties' obligations

with regard to interface, integration, and safety shall normally be made without

restriction, except a<; required by applicable laws and regulations relating to export

control or the control of classified data If design, manufacturing. and processing

data, and associated software, which is business confidential but not export

controlled, is necessary for interface, integration, or safety purposes, the transfer

shall be made and the data and associated software shall be appropriately marked.

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All information, Equipment and Material subject to export controls shall not be transferred

pursuant to this Agreement unless such transfers are compliant with the originating Party's

export control laws, policies, and regulations~

Article l 1

Classified Information

1. Classified Information exchanged between the Parties shall be handled and

protected in accordance with the General Security Agreement between the

Government of the Federal Republic of Germany and the Government of the

United States of America of December 23, 1960 and the subsequent operating

procedures for its implementation as of 1980, including any subsequent

amendments. The Parties shall each designate a Security Authority as the

government single point of contact and authority responsible for the development

of policies and procedures governing security of Classified Information covered by

this Agreement

2. Classified Information provided or generated under this Agreement shall be

protected in accordance with the Parties' applicable security laws and regulations

and by respecting access or distribution limitations applied by the originator.

3. Detailed procedures on the handling and transfer of classified Project Background

and Project Foreground information may be agreed in Project ArrangemenL'i.

Article 12

Controlled Unclassified Information

1 . Any information or Equipment and Material exchanged or generated under this

Agreement, which has not been classified in the interest of security, but requires

dissemination control and protection against unauthorized disclosure in the interest

of the originator or which is subject to access limitations, restrictions on usc,

further release or export control, shall be handled, protected, and prevented from

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unauthorized disclosure in accordance with the Parties' applicable laws and

regulations in order to provide an mutually acceptable level of protection.

2. Unclassified information provided under this Agreement and requiring control and

protection by the receiving Party shaH

a) be appropriately marked in order to highlight its sensitivity,

b) not be used for purposes other than as described in this Agreement,

c) not be further released to Third Parties without the prior consent of the other

Party or the originator.

3. The Parties shal~ in accordance with their applicable laws and regulations, take all

necessary measures at their disposal to prevent unclassified information from

unauthorized disclosure.

Article 13

Intellectual Property Management and Use of Information

1. General: Both Parties recognize that successful collaboration depends on full and

prompt exchange of information necessary for carrying out Projects. The nature

and amount of Project Background Information to be acquired and disclosed shall

be consistent with this Agreement and the terms of the Technology Management

Plans contained in the individual Project Arrangements, whereby the Parties intend

to make available sufficient Project Background Information and/or rights to use

such information to enable the development of technologies, prototype equipment,

and other activities included in a Pr~ject. The rights of holders of intellectual

Property may not be affected.

2. Exploitation: Issues related to the management of Project Background Information

and PrQjcct Foreground Infonnation, including the allocation of any benefits

(including royalties) derived from the creation and exploitation of Intellectual

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Property in Project Foreground lnfonnation in respect to Projects under this

Agreement shall be governed by the Articles of this Agreement, including the

provisions of the Annex, and the applicable Project Arrangement.

3. Project Background Infonnation furnished by the Parties:

a) Disclosure: Unless provided otherwise, each Party shall disclose to the other

Project Background lnfonnation in its possession or control related to each

Project, provided that:

(i) the Project Background lnfonnation is necessary to or useful in the

implementation of a proposed or existing Project established pursuant

to this Agreement. The Party in possession or control of the

infonnation shall detennine whether it is "necessary to" or "useful in"

establishing new Projects or implementing existing ones;

(ii) the Project Background lnfonnation shall be made available without

affecting the rights of holders of Intellectual Property or Business

Confidential Infonnation; and

(iii) disclosure is consistent with national disclosure policies, laws, and

regulations applicable to the furnishing Party.

b) Use: Unless provided otherwise, Project Background Infonnation furnished by

the Parties disclosed by one Party to the other may be used without charge by

the other Party for Project purposes only; and the furnishing Party shall retain

all its rights with respect to such Project Background lnfonnation furnished by

the Parties. Where the use of Project Background Information furnished by the

Parties is necessary to enable the use of Project Foreground information, such

Project Background Information furnished by the Parties may be used by the

receiving Party for homeland/civil security purposes, upon written agreement

of the Parties and in accordance with applicable laws.

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4. Participant-Furnished Project Background Information:

a) Disclosure: Unless provided otherwise, Project Background Information

furnished by a Participant involved by one Party shall be made available to the

other Party and/or Participant provided the following conditions are met:

(i) the Project Background Information is necessary to or useful to the

Project. The Party and/or Participant in possession or having control

of the information shall determine whether it is "necessary to" or

"useful in" a Project;

(ii) the Project Background Information can be made available without

affecting the rights of holders of Business Confidential Information

or Intellectual Property; and

(iii) disclosure is consistent with national disclosure policies, laws, and

regulations applicable to the furnishing Participant.

b) Use: Project Background Information furnished by Participants may be subject

to restrictions by holders of Intellectual Property. In the event that it is not

subject to restrictions preventing its use, it may only be used for Project

purposes. lf a Party wants to use Participant-Furnished Project Background

Information for purposes other than Project purposes, (which other purposes

shall include, without limitation, sales and licenses to Third Parties), then the

requesting Party and/or Participant must obtain any required permissions from

the owner or owners of the rights to that information.

5. Project Foreground Information:

Project Foreground Information may be protected and commercialized where

appropriate, in which case benefits derived from the utilization and application of

such information shall be distributed as determined in the Technology

Management Plan of the applicable Project Arrangement taking into account the

relative contributions of the Parties and/or Participants to the Project. the cost of

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commercialization, and the degree of commitment of the Parties and/or

Participants to obtaining legal protection of Intellectual Property.

Wherever appropriate, the Parties will negotiate with the Participants to obtain

rights to use and disclose Project Foreground Information.

Each of the Parties and/or Participants may own its Intellectual Property in Project

Foreground Information in its own jurisdiction and in the jurisdiction of the other

Party and/or Participant and may derive benefits from its exploitation and

commercialization in those jurisdictions., with a mechanism for their establishment

in the Technology Management Plan ofthe applicable Project Arrangement.

Article 14

Publication of Research Results

1. The Parties agree that the provisions of paragraph A of Section ill of the Annex to

this Agreement shall apply to the publication of any research results created under

this Agreement.

2. Publication Review: The Parties agree that publication of the results may be one of

the goals of this Agreement to stimulate further research in the public or private

sector. In order to protect the rights of the Parties, including to avoid prejudice to

the holders of Intellectual Property and Business Confidential Information, each

Party shall transmh to the other for its review any material containing such results

and intended for publication. or other disclosure, at least sixty (60) working days

before such material is submitted to any editor. publisher, referee or meeting

organizer, or is otherwise disclosed. In the absence of an objection by the other

Party within that sixty-day period the publication or other disclosure may proceed.

If either Party raises an objection to the public release of publications arising from

this Agreement, public release will not occur unless and until there is agreement

between the Parties as to the conditions for public release. It is the responsibility of

each Party to coordinate with its Participants to determine whether all potential

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Intellectual Property or Business Confidential Information interests have been

properly considered.

3. Affiliation: The involvement ,and/or financial support of the Parties for

Cooperative Activity shall not be used in any public statement of a promotional

nature or used for commercial purposes without the express written permission of

both Parties. Such permission shall not be unreasonably withheld.

4. Publicity and Acknowledgements: All publications relating to the results of the

Projects established pursuant to this Agreement shall include, as applicable, a

notice indicating that the underlying Project received financial support from the

Government of the United States of America and/or the Government of the Federal

Republic of Germany. Two copies of such publications shall be sent to the

Agreement Directors by the individual or entity that authored the publications.

Article 15

Entry of Personnel and Equipment and Material

l. With respect to Cooperative Acti_vity under this Agreement, each Party, in

accordance with its applicable laws and regulations including export control laws,

and as appropriate, shall facilitate:

a) prompt and efficient entry into and exit from its territory of appropriate

Equipment and Material, to especially include instrumentation, test equipment

and Project Background and Foreground Information;

b) prompt and efficient entry into and exit from its territory, and domestic travel

and work of, persons participating on behalf of the Parties or Participants in the

implementation of this Agreement;

c) prompt and efficient access, as appropriate, to relevant geographical areas.,

information. Equipment and Material and institutions, for persons participating

on behalf of the Parties, or Participants, in the implementation of this

Agreement; and

d) mutual logistic support

2. Insofar as applicable laws and regulations permit, each Party shall use their be~t

efforts to ensure that directly applicable duties, taxes, and similar charges, as well

as quantitative or other restrictions on imports and exports, are not imposed in

connection with Projects carried out under this Agreement.

Article 16

Research Safety

1. The Parties and Participants shall establish and implement policies and practices to

ensure and provide for the safety of their employees, the public, and the

environment during the conduct of Projects subject to applicable laws and

regulations. If any Cooperative Activity involves the use of dangerous or

hazardous materials, the Parties and Participants shall establish and implement an

appropriate safety plan.

2. Without pr~judice to any existing arrangements under the Parties' applicable laws,

the Parties and Participants shall take appropriate steps to protect the welfure of

any persons participating involved in Projects. Such steps may include the

provision of medical treatment and. where appropriate, financial relief

Article 17

Privacy

All Cooperative Activity conducted pursuant to this Agreement will respect applicable

privacy protection standards. The transmission of personal data will be governed by the

applicable law ofthe transmitting Party.

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Article 18

Third Party Sales and Transfers

Neither Party shall:

a) sell, transfer title to, disclose, or transfer possession of Project Foreground

Information, or equipment incorporating Project Foreground Information, to a

Third Party without the prior written consent of the other Party; or

b) permit any such sale, disclosure, or transfer by others, including by the owner

of the item, without the prior written consent of the other Party. Such sa1es and

transfers shaH be consistent with Article 13.

Article 19

Dispute Resolution

1. Except for disputes concerning lntellectual Property and those procedures set forth

in Article 14, all questions or disputes between the Parties that cannot be resolved

by the Agreement Directors arising under or relating to this Agreement shall be

submitted to the Executive Agents. Such questions and disputes shall be resolved

only by consultation between the Parties.

2. Disputes between the Parties concerning Intellectual Property shall be resolved as

provided for in the Annex.

Article 20

Status of the Annex

The Annex iorms an integral part of this Agreement and, unless expressly stated

otherwise, a reference to this Agreement includes a reference to the Annex.

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Article 21

Entry into Force, Amendment, Duration, and Termination

1 . This Agreement shall enter into force upon signature by both Parties.

2. The Agreement may be amended in writing by the mutual consent of the Parties.

3. A Party may withdraw from this Agreement upon six (6) months advance written

notification to the other Party. This Agreement may also be terminated by the

mutual written agreement of the Parties.

4. Unless otherwise agreed, termination of this Agreement shall not affect the validity

or duration of any Cooperative Activity previously undertaken pursuant to it.

5. The respective rights and responsibilities of the Parties and Participants under

Articles 12, 13, 14, 17, 18, and the Annex shall continue notwithstanding the

termination or expiry of this Agreement. In particular, all Classified Information

exchanged or generated under this Agreement shall continue to be protected in the

event of the termination or expiry of the Agreement

DONE at Berlin, on this 16th day of March 2009, in duplicate in the German and English

languages, both texts being equally authentic.

tJ J /i1.K.:-FOJHE GOVERNMENT OF

THE UNITED STATES OF AMERICA

~~It~ i../

FOR TilE GOVERNMENT OF

THE FEDERAL REPUBLIC OF

26

ANNEX

Intellectual Property Rights

I. General Obligation

The Parties shall ensure adequate and effective protection of intellectual property created or

furnished under this Agreement and relevant implementing arrangements. Right<; to such

intellectual property shall be allocated as provided in this Annex.

II. Scope

A. This Annex is applicable to all Cooperative Activity undertaken pursuant to

this Agreement, except as otherwise specifically agreed.

B. Each Party shall ensure, through contracts or other legal means with its own

Participants, if necessary, that the other Party can obtain the rights to

Intellectual Property allocated in accordance with this Annex. This Annex does

not otherwise alter or prejudice the allocation of Intellectual Property as

determined by that Party's laws and practices.

C. Except as otherwise provided in this Agreement, disputes between the Parties

concerning Intellectual Property arising under this Agreement shall be resolved

through discussions between the concerned Participants or, if necessary. the

Parties. Upon mutual agreement of the Parties, a dispute shall be submitted to

an arbitral tribunal for binding arbitration in accordance with the applicable

rules of international law. Unless the Parties agree otherwise in writing. the

arbitration rules of UNCITRAL shall govern.

D. Termination or expiration of this Agreement shall not affect rights or

obligations under this Annex.

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IlL Allocation of Rights

A. Subject to applicable copyright protection, each Party shall be entitled to be

granted a non·exclusive, irrevocable, royalty-free license in an countries to

translate, reproduce, and publicly distribute scientific and technical journal

articles, reports, and books directly arising from cooperation under this

Agreement. AIJ publicly distributed copies of a copyrighted work prepared

under this provision shall indicate the names of the authors of the work unless

an author explicitly declines to be named.

B. Rights to all fonns of Intellectual Property, other than those rights described in

paragraph lilA above, shall be allocated as follows:

(1) Visiting researchers shall receive, for any intellectual property they

create, rights, awards, bonuses and royalties in accordance with the

policies of the host institution.

(2) (a) Unless otherwise agreed in writing, the Parties or the Participants

shall jointly develop provisions of a Technology Management Plan

regarding ownership and exploitation rights to Intellectual Property

created in the course of the Project other than those covered by

paragraph Ill (B) (1) ofthis Annex. The Technology Management Plan

shall consider the relative contributions of the Parties and Participants

to the Projec~ the degree of commitment in obtaining legal protection

and licensing ofthe Intellectual Property, and such other factors as are

deemed appropriate.

(b) If the Parties or the Participants do not agree on the interpretation of

such provisions of a Technology Management Plan or if such

provisions have not been established under subparagraph (a) within a

reasonable time, not to exceed six months from the time a Party

becomes aware of the creation of lntellectua1 Property created in the

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course of the a Project, the Parties or their Participants shall resolve the

matter in accordance with the provisions of paragraph II (C) of this

Annex. Pending resolution of the matter, any Intellectual Property

created by persons employed or sponsored by one Party under a Project

shall be owned by that Party and Intellectual Property created by

persons employed or sponsored by both Parties shall be jointly owned

by the Parties, but such Intellectual Property shall be commercially

exploited only by mutual agreement.

(c) Notwithstanding paragraphs III B(2)(a) and (b) above, if either

Party believes that a particular project may lead to or has led to the

creation of Intellectual Property not protected by the laws of the other

Party, the Parties shall immediately hold discussions to determine the

allocation of rights to the Intellectual Property. lf an agreement cannot

be reached within three months of the date of the initiation of the

discussions, cooperation on the Project in question shall be terminated

at the request of either Party. Creators of Intellectual Property shall

nonetheless be entitled to awards, bonuses and royalties in accordance

with the policies of the institution employing or sponsoring that person.

(d) Any invention made under any Cooperative Activity shall be

disclosed promptly to the other Party and/or Participant together with

any documentation and information necessary to establish any rights to

which it may be entitled. Either Party and/or Participant may ask the

other Party and/or Participant in writing to delay publication or public

disclosure of such documentation or information for the purpose of

protecting its rights in the invention. Unless otherwise agreed in

writing, the delay shall not exceed a period of six months from the date

of disclosure by the inventing Party and/or Participant to the other

Party and/or Participant.

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IV. Business Confidentiallnfonnation

In the event that information identified in a timely fushion as business-confidential is

furnished or created under this Agreement,, each Party and its Participants shall support the

protection of such infonnation in accordance with applicable laws, regulations, administrative

practices, and non-disclosure agreements. lnfonnation may be identified as "business­

confidential" if a person having the information may derive an economic benefit from it or

may obtain a competitive advantage over those who do not have it, and the information is not

generally known or publicly available from other sources, and the owner has not previously

made the information available without imposing in a timely manner an obligation to keep it

confidential.

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